Amidst Nationwide Reproductive Roll Backs, New York State Doubles Down on Roe v. Wade

by Ofu Takor

ALBANY, NY—On the 46th anniversary of the landmark Roe v. Wade decision that guaranteed a woman’s right to abortion, New York State Gov. Andrew M. Cuomo signed the Reproductive Health Act into law. Applauded by abortion rights advocates who wore pink in support of the bill and joined by Sarah Weddington, who argued Roe v. Wade, Gov. Cuomo expressed his support for the new legislation.

“Today we are taking a giant step forward in the hard-fought battle to ensure a woman’s right to make her own decisions about her own personal health, including the ability to access an abortion,” Cuomo said. “With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body.”

On a national level, New York continues to be one of the least-restrictive states in the country regarding abortion access. New York does not have waiting periods or require minors to get consent from parents or guardians in order to have the procedure. New York is also one of just 15 states that allow state funding through Medicaid to pay for all or most medically necessary abortions.

The Reproductive Health Act updates New York’s abortion law by moving abortion from the criminal code to the public health domain. This means women can seek out abortion and healthcare providers who perform them without risk of criminal prosecution. The act also allows for non-physicians, including physician assistants and nurse practitioners, to perform the procedure as long as they are certified by the state and abortion is in their scope of medical practice. Lastly, the law allows women to have an abortion after 24 weeks if the fetus is found not to be viable or the woman’s health is in jeopardy.

Impact of the Reproductive Health Act

The Reproductive Health Act has been seen as a response to the Trump administration, widely viewed as against abortion access. The administration has also been adamant about defunding Planned Parenthood, which they view as a promoter of abortions.

While abortions after 24 weeks are extremely rare, with only 1.3 percent of all abortions being performed after the 21st week, they are one of the most contentiously debated topics surrounding abortion access. Before the Reproductive Health Act, state law had only allowed for abortions after 24 weeks if the woman’s life was at risk. The act, first announced by Gov. Cuomo at a reproductive rights rally, was opposed by the many representatives who argue that it is not needed because New York already has laws in place protecting abortion access. In an interview on North Country Public Radio, Senate Majority Leader John Flanagan explained why he did not support the proposal.

“If you just take a snapshot, there’s access, there’s safeguards,” Flanagan said, “and all of those things, regardless of what one might think of abortion, or access to it, those are things I think are very important.”

Abortion rights advocates see the new law as a necessary update for New York State to be in line with current federal law under Roe v. Wade.

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The debate over abortion access in New York state is far from over. Photo courtesy of the New York ACLU.

Elena Lipsiea, president of Planned Parenthood Generation’s UAlbany chapter, who supports the Reproductive Health Act said, “It ensures that folks in New York State don’t have to leave the state in order to access this healthcare [and] can stay in their home state to make sure that they’re treated as they need to be.”

The Court decided Roe v. Wade three years after New York had last updated its abortion law. Before Roe v. Wade, New York’s state law was one of the most non-restrictive in the country, with thousands of women traveling from out of state to get the procedure. However, after Roe v. Wade, New York law was seen as outdated because federal law allowed for abortions past 24 weeks to preserve a woman’s health, while the state only permitted abortions past the 24-week mark if the woman’s life was at risk.

Even though Roe v. Wade established abortion as a “fundamental right” the court also said that states could regulate abortion after the point of “viability” or the stage in which a fetus could live outside of the womb. While the standards of fetal viability have been emphatically contested with suggestions ranging from 20 to 28 weeks, the stage of viability has been set to approximately 24 to 28 weeks.  

Because the state did not allow abortions past the 24-week point unless the life of the woman was at risk, pregnant women who discovered their pregnancy was abnormal or not viable past the 24-week mark would possibly be forced to carry the fetus to term if she could not find a health provider who would perform an abortion past 24-weeks. Advocates for abortion and reproductive rights argued that the gap in policy made healthcare providers hesitant to provide abortion services to women who were more than 24 weeks pregnant due to the threat of breaking state law.

Abortion rights advocates see the Reproductive Health Act as a step in the right direction and a win for abortion access, and those who do not support abortion see the law as a move in the wrong direction for New York State. Most notably, President Donald Trump in this year’s State of the Union address denounced the passage of the bill and called for Congress to “prohibit the late-term abortion of children, who can feel pain in the mother’s womb.”

The Reproductive Health Act has also galvanized many anti-abortion campaigners who protested the bill at its signing and thousands gathered in black clothing for a “Day of Mourning” event which took place in response to the act. Opponents of the bill say that the language of the bill lacks clarity, and they fear that this will encourage more women to seek out late-term abortions.

Abraham Frangie is a junior at the University at Albany and president of his university’s College Republicans. He does not support abortion in any case and says the Reproductive Health Act is not a good policy because of the “unclear” wording. Frangie said that words like “health” are too vague to be used in law and argues that it could lead to an uptick of abortions.

“You can define health as anything.  If I stub my toe is that bad health?” Frangie said, “There’s no definition for what health is or what viability is so you could justify an abortion past 24 weeks however you choose, presumably.”

Frangie is not alone in his beliefs and many religious organizations have also criticized the new legislation.

Alejandro Gonzalez is a senior at the university and runs a Christian student organization called Cru. He says that he, along with others, are concerned about what the legislation might mean for abortions in New York.

“Abortion at any point is against God’s plan,” Gonzalez said. “When people clap in the legislature for a bill like this we do get a bit concerned because we do see life in the womb as precious and a part of God’s plan.”  

Not every student agrees with that sentiment, however. Subha Tasnim is a senior at the University at Albany and she says she supports the new Reproductive Health Act. Like many supporters of the act, Tasnim sees abortion as a personal and individualized decision and believes that the bill has been largely mischaracterized.

“A lot of people are under the impression that you can just terminate the pregnancy because you feel like it, but that’s not actually the case.” Tasnim said, “I think a woman’s health choice is and has always been between her and her doctor. I don’t think that anyone else has a right or opinion on it.”

Lipsiea also believes that the scope of the act has not been properly reflected, especially on social media. Growing up in a “pro-life household” allowed her to have an understanding of the concerns that anti-abortion advocates have, she said. Lipsiea encourages people to do their own research and listen to stories from those who have undergone the procedure as well as medical professionals who have performed it.

“Do some investigative work yourself and lean into stories coming from people first hand as opposed to fabrications based on fear,” Lipsiea said. “That’s really where you’re going to see what’s at the heart of the issue which is people’s safety and the importance of ensuring that all folks have access to the healthcare they need.”

New York in National Context

Often overlooked due to the controversial nature of the Reproductive Health Act, on the same day, the New York State Senate also voted to pass the Comprehensive Contraceptive Coverage Act (CCCA). This bill would require that all health insurers in New York State cover “all FDA-approved contraceptive drugs, devices, and products when prescribed by a health care provider.” Health insurers will be required to cover contraceptives without deductibles or copayments.

Another bill that is being considered in the New York State Senate Insurance Committee is the Boss Bill. This bill would prohibit employers from discriminating against an individual based on their reproductive health decisions such as an individual’s choice of contraception or medical procedure. The Boss Bill would also prohibit employers in New York from requiring employees to sign waivers or any other documents that interfere with their personal reproductive health decision making.

This bill and the others stand in stark contrast with the Trump administration, which has made several policy moves to restrict abortion access. Most recently, the administration announced a plan to shift federal Title X funding from Planned Parenthood and distribute it to anti-abortion groups. Furthermore, the administration’s appointments of federal judges, most recently the appointment and confirmation of Supreme Court Justice Brett Kavanaugh, have abortion rights activists concerned that Roe v. Wade could be overturned in the near future.

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A woman looks on as New York lawmakers debate the Reproductive Health Act. Photo courtesy of the New York ACLU.

In October 2017, the Trump administration altered a policy enacted by the Obama administration that mandated health insurers cover women’s preventative care and screenings without cost sharing. The administration added an exemption to the policy: insurers could choose not to follow the policy for religious or moral beliefs. Prior to the passing of the Patient Affordable Care Act (ACA), many providers did not cover contraception, and now providers have the option of opting out of the mandate.

In addition to new judges and executive actions, abortion rights activists are concerned about top officials like Vice President Mike Pence, a known anti-abortion advocate, as well as the assistant secretary of the Department of Health and Human Services, Charmaine Yoest, was previously the President and CEO of Americans United for Life.

The Trump administration is not the only thing that has abortion rights activists worried: many conservatives have pushed for legislation that restricts or limits access to abortion. Congressional Republicans introduced the Pain-Capable Unborn Child Protection Act in January 2017, which would have prohibited abortions past 20 weeks nationwide based on the belief that a fetus can feel pain during an abortion. While studies have not confirmed this, many scientists do not believe that a fetus could develop the neurological connections necessary to feel pain before at least 24 weeks. Although the bill has not passed, it marks another Republican attempt  to push anti-abortion legislation.

Reinforcing Roe v. Wade

States have continued to challenge Roe v. Wade by enacting laws that some view as restricting access to abortion. For example, the 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt struck down a Texas state law that requires physicians to have admitting privileges at a hospital and that all abortion clinics comply with ambulatory surgical center standards. This impacted states nationwide in that it not only resulted in Texas abortion laws being struck down but other states like Alabama, Mississippi, and Wisconsin would have to reconsider enstating similar abortion-restriction laws as well.

Other Supreme Court decisions worry abortion advocates, such as Planned Parenthood v. Casey, which upheld a Pennsylvania state law that required parental consent for minors as well as a 24-hour waiting period before an abortion could be performed.

Amidst the wave of restrictions to abortion access and those calling for Roe v. Wade to be overturned, states like New York are going against the current of anti-abortion legislation. While 5 states including Louisiana and North Dakota, currently have “trigger laws” that will automatically outlaw abortion if the ruling is overturned, a number of states around the nation have decided to go a different path and instead are considering or have passed fail-safes that will go into place in the event that Roe v. Wade is overturned and the decision on whether or not to allow abortion is left up to the states.

States such as Virginia, Texas, and Massachusetts are sponsoring bills that will make the right to an abortion a part of state law. However, abortion rights activists fear that many states will decide to severely restrict or outlaw abortion. For anti-abortion advocates, though, it would be the decision they have been waiting for since Roe v. Wade was decided.

While New York abortion-rights advocates may have made headway in the battle over Roe v. Wade with the passage of the Reproductive Health Act, the debate is far from over and will likely continue throughout the current administration and beyond.

Ofu Takor is a senior political science major from the State University of New York in Albany.

The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion. The cover photo above is courtesy of the Office of the Governor of New York.

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